Gaete Postmodernism Human Rights
Legal Theory, Law and Politics
“Systems of law based on human rights principles are not tactical choices that we can make or not at will. But have evolved historically, becoming a necessary part of the technological and bureaucratic stage set of the modern state in western societies. In this sense, postmodernist challenges are not critical: they leave everything as it is.”
Gaete, Postmodernism and Human rights
Discuss
Introduction
Human rights is a basis upon which all legal decisions regarding the passing of laws are made and Gaete suggests that this format was an historical development that became obligatory as it maintains the bureaucratic and technological settings of societies of the west. Therefore, postmodernist challenges have no impact.
This paper discusses the integrity of this statement.
Part One – Law making under Human rights based jurisdictions.
1.In favour of Gaete, Human Rights as a baseline
Human Rights are the static basis from which all laws are to be passed. This is stipulated under our own UK Human Rights Act 1998, in which there is express stipulation of the requirement for all laws to be passed in accordance with the provisions of the European Convention on Human Rights. Existing conflicting laws are subject to compulsory repeal and replacement by Act of Parliament. A more powerful impact on incompatibility exists for the American jurisdiction as the Supreme Court is granted power to instantly render void any law that is deemed to be contrary to the Bill of Rights.
2.Relevance to the Economy and Politics: Technology and Bureaucracy
Systems that are based on Human Rights are provided with precise guidelines as to the direction of all law making. Logically, in a modern, Western State, this non-volatile and predictable nature of the law is vital, not only to the sense of security felt by people but to all aspects of the first world. Human Rights create stability that secures the economy by virtue of ensuring basic rights such as, freedom of establishment, privacy and equality. These extrapolate to all aspects of commerce such as patents in technology, stock and shares, heritable ownership and of course employment.
Bureaucratically speaking, the essential requirement for non corruption, freedom of information, a fair tax system and strong policies of disclosure in all financial matters adds to the attractiveness of direct foreign investment that are also vital to economic wealth.
3.Finding fault with Gaete
It must however be acknowledged that Human rights are no more a guarantee of the philosophical and moral direction of law than is the inauguration of a dictator, a guarantee of persecution of subjects. The reason for this is that Human Rights, like all laws, are easily manipulated by the keen interpreter to an extent that is capable of rendering them useless as safeguards against injustice. A prime American example is that of the deep South and the notorious case of Plessy v Ferguson in which the “separate but equal” doctrine justified segregation in a jurisdiction with a Bill of Rights that professed equality.
Furthermore to state that Human rights based legal systems are necessary to the western society stage is to underhandedly reject those less formal default structures that existed and continue to exist and thrive as societies, not just on the boarder, but at the very centre of the western society concept. An example is that of the UK, which existed as the forefront of Western Society without Human Rights legislation until the passing of the Human Rights Act in 1998.
Part Two – The potential influence of the Postmodern theorist
1.Defining Postmodernism
Postmodernism is an outright rejection of strict and rigid guidelines that determines to place all things into separate categories and present a logic that adheres to the modernist concept of distinction and classification. As an art form, Postmodernism removed the boundaries of enforced designation of art and focuses on the condition of interpretation as the true yet purely subjective determinant of art. As a legal form, this would entail incoherence that is believed to be too vague and abstract for application to the social world.
2.The Human Rights Connection that rejects Gaete
Human Rights are the opposite of this concept as they constitute the modern version of Lyotard’s ‘grand narratives’ for western society that are the teachings used to facilitate order. The post modernist challenge would, according to Lyotard, constitute an embracement of disorder as the true norm and instead of adhering to universal truths, the ‘mini narrative’ would exist as the tool that explains small events and local occurrences. Gaete argues that this challenge would not be critical to legal systems that have historically evolved with the Human Rights obligation or ‘grand narrative’ at their core. However, where Human Rights are a ‘grand narrative’ the impact of the postmodernist theory is highly critical because Western infrastructure’s ontological focus is on a tangible reality with boundaries that create certainty.
3.In support of Gaete
Human rights as a ‘grand narrative’ possesses one flaw, which is that there is no mention of the imperfections that are common to any body of law. While the post modernist attacks this flaw, supporters of the ‘grand narrative’ refute a ploy to mask inconsistencies and point out the intelligence of citizens who are not naïve to an extent that would have them believe in perfect law. Instead, they are apathetic to the imperfections and these very imperfections are at the core of vulnerability to corruption such as Jim Crow. This therefore means that Human Rights are not quite the universal truths that a ‘grand narrative’ professes to be. Instead, Human Rights come as close to the truth as is possible in the process of translating a concept into words. This therefore means that the Human Right is a fundament that we have adopted because it appeals to us, but it possesses a vulnerability through interpretation of meaning thereby causing it to transcend the border from modernism into postmodernism. As an item that is subject to interpretation, the Human Right, just like any other law, can be described as a postmodernist entity but it is given rigid structure by outright rejection of its ambiguous potential.
Conclusion
The true, critical postmodernist challenge to law is not a focus on the human rights, which are subject to many different uses and interpretations. Instead postmodernism attacks the rigid designation of one meaning to the Human Rights provisions. This therefore means that our evolved obligation to utilise Human Rights within the structure of our Western societies is, as Gaete says, not critical and is even irrelevant to the consideration of order and disorder that is at the core of the modernist/postmodernist debate.
Bibliography
Legislation
- Human Rights Act 1998
Case Law
- Plessy v Ferguson, 163 US 537 (1896)
- Roe v Wade 410 US 113 (1973)
Textbook Publications
- A Sarat and T R Kearns (editors) “Legal Rights” Historical and Philosophical Perspectives (University of Michigan Press, 1996)
- J F Lyotard, “Theory & History of Literature: Just Gaming” (University of Minesota Press, 1985)
Articles
- T Britt, “Narrative Pragmatics and the Genius of the Law in Lyotard’s Just Gaming,” (College Literature, University of Memphis, Vol 25, 1998)
- J Donoghue, “Theoretical and Ideological Perspectives of Postmodernism,” (University of Stirling, 2004)
Please note: The above essays and dissertations were written by students and then submitted to us to display and help others. Thanks to all the students who have submitted their work to us.
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